Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Monday, April 14, 2014

420 Archive or The End of Marijuana Legalization History

The optimist in me is starting to think that someday the effort to legalize marijuana in the US will be a piece of [successful] history and a piece of history that should be preserved.

So, I was very happy to find out about the 420 Archive at the ASA [Americans for Safe Access] conference in DC lastweekend. The mission of the 420 Archive ,which is in the throes of becoming a 501(c)(3),is

 To research, collect and preserve for public enrichment the history, activism and culture of 20th and 21st century U. S. cannabis production and marijuana prohibition with an emphasis on California and the western United States.

The 420 Archive will seek out oral histories and documents related to this mission, help other organizations archive their collection and in 10 to 15 years or so hand over their collection to an institution that will maintain the material permanently and go out of business.

Oral histories from legal pioneers and legal materials should be part of this archive. But which legal pioneers? Keith Stroup from NORML is one of my nominations but what about the unknown public defenders and criminal defense attorneys who helped clients on possession charges?  California's Proposition 215 must be there but what will be the last legal document in the archive, the one just before "The End"? The fiftieth state's law allowing adult recreational use?  The federal law amending the Controlled Substances Act to remove marijuana from  Schedule I? 

What would you include in the 420 Archive? Looking forward to your comments. 

 

April 14, 2014 in History of Marijuana Laws in the United States | Permalink | Comments (1)

Tuesday, March 4, 2014

"Immigration Law in the Age of Marijuana Decriminalization"

The title of this post is the title of this new post by Jordan Cunnings at the blog crImmigration.com.  The full post is worth a read, and here is how it starts:  

In a recent New Yorker interview, President Obama described marijuana use as a “bad habit and a vice, not very different from. . . cigarettes,” and not more dangerous than drinking. The President expressed concern with the disproportionate rates of criminal punishment for marijuana use in poor and minority communities, and spoke favorably of recent efforts to legalize small amounts of the drug in the states of Colorado and Washington.

While Obama’s comments may be a good sign for marijuana legalization advocates, his personal viewpoint is glaringly inconsistent with his administration’s consistently harsh enforcement efforts in the area of marijuana use and immigration. While marijuana use is legal in one form or another in twenty states and the District of Columbia, and banks now have the green light from the Treasury Department to finance legally operating marijuana dispensaries, noncitizens remain at risk for incredibly harsh and disproportionate immigration consequences when using small amounts of marijuana. Low-level marijuana charges often funnel noncitizens into the immigration law system, prevent otherwise-eligible noncitizens from obtaining lawful immigration status, and subject lawfully present noncitizens to deportation. Worse yet, marijuana laws are disproportionately enforced in poor and minority communities—as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do”—meaning that marijuana citations and arrests may disproportionately impact the people of color who make up the bulk of today’s immigrant groups.

Though recent prosecutorial discretion memos by the former head of the Immigration and Customs Enforcement (ICE) agency John Morton purport to refocus enforcement priorities away from individuals who have only minor criminal histories, immigration law enforcement statistics from the past two years show that this policy is not being followed. Marijuana laws are disproportionately enforced in poor and minority communities – as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do” — meaning that marijuana citations and arrests often serve as entry point into the criminal justice system and then the deportation system. A Transactional Records Access Clearinghouse (TRAC) review of ICE documents from fiscal years 2012 and 2013 found that marijuana possession was one of the top five most common offenses for which ICE issued immigration detainers against individuals. This means that thousands of noncitizens are funneled into ICE custody after being charged with low-level marijuana possession offenses. 

March 4, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, International Marijuana Laws and Policies | Permalink | Comments (1)

Thursday, January 23, 2014

"How Colleges Are Preparing Students for a Country Where Pot Is Legal"

The title of this post is the headline of this notable new article appearing in The Atlantic.  I am pleased that my law school seminar, Marijuana Law, Policy and Reform, is discussed in the piece, and I am even more pleased to learn from the article that at least one other law school is now innovating in this interesting new legal space:

Professors who found an intersection between the cannabis issue and their own area of study are not the only ones pushing to introduce cannabis to higher education. Rehman Bhalesha, a South Texas College of Law student, approached the dean about wanting to establish a drug policy institute at the law school that concentrated on the legalization of cannabis. Instead, the school started a collaboration with Rice University's Baker Institute, which already focused on drug policy. The first class at South Texas College of Law, which covered cannabis legislation, was taught last spring semester. It is offered again this semester.

“Internally, the administration is really thrilled about it because it’s something innovative. And the students are excited because they get to feel like they’re putting their legal knowledge to use and to do something that might have a lasting impact in the real world. They’re not just taking exams and doing make-believe projects. We’re taking what they draft and turning it over to people who have been approached by state legislators asking for ideas,” said Dru Stevenson, the professor who teaches the legislation course.

Students in the legislation class have a range of personal feelings about cannabis. Some feel all drugs should be legalized, others think cannabis should be legalized for medical purposes only, while a few others think all drugs are bad. But Stevenson said even those who think no one should ever consume cannabis recognize the trend toward relaxing cannabis laws from a historical perspective.

“I teach a lot of courses, but I’ve never had one where people were emailing me months in advance wanting to make sure that I’m going to be offering the course and wishing they could reserve a seat ahead of time,” Stevenson said.

January 23, 2014 in Current Affairs, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (3)

Monday, January 20, 2014

MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition

MLKIn this post a few months ago on the 50th Anniversary of Dr. Martin Luther King Jr.’s famed "I Have A Dream" speech, I asked this question: Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?." Now, as a way to honor the special day in which we honor the legacy of Dr. King's work, I provide this abridged and tweaked version of famed "I Have A Dream" speech:

One score and four years ago, Congress enacted the Controlled Substances Act. This momentous decree came as a great prohibition to millions Americans who had been enjoying the flames of a plant. It came as a notable break to end the long American history of freedom to grow and use marijuana. Forty four years later, the American pot user still is not free. Forty four years later, the life of the American pot user is still sadly crippled by the manacles of marijuana prohibition and the chains of incarceration. Forty four years later, the American pot user lives on a peculiar island of marijuana prohibition in the midst of a vast ocean of alcohol and tobacco and prescription drug use and abuse. Forty four years later, the American pot user still languishes in the corners of American black markets and finds himself in exile in his own land....

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.

This note was a promise that all men, yes, men who like marijuana as well as men who like alcohol, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness....

It would be fatal for the nation to overlook the urgency of the moment. This exciting winter of legitimate marijuana sales will not pass until there is an invigorating autumn of freedom and equality. Twenty Fourteen is not an end, but a beginning. Those who hope that the American pot user needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the American pot user is granted his liberty and rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges....

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.

Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident; that all men are created equal."

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood with marijuana as well as with alcohol.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the intoxicant they responsibly enjoy but by the content of their character....

I have a dream that one day every valley shall be exhalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith that I will go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood.

With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

This will be the day when all of God's children will be able to sing with new meaning, "My country 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the Pilgrims' pride, from every mountainside, let freedom ring."

And if America is to be a great nation, this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania.

Let freedom ring from the snow-capped Rockies of Colorado. Let freedom ring from the curvaceous slopes of California. But not only that; let freedom ring from the Stone Mountain of Georgia. Let freedom ring from Lookout Mountain of Tennessee.

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! Free at last! Thank God Almighty, we are free at last!"

January 20, 2014 in Current Affairs, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Race, Gender and Class Issues | Permalink | Comments (1)

Tuesday, November 19, 2013

Readings on marijuana laws' impact on immigration and extradition issues

Especially because I tend to be under-informed about immigration laws and policies, I am very excited that the student-selected topic for discussion this week in my Marijuana Law, Policy and Reform seminar is the impact of marijuana laws on immigration and extradition issues. Here are the readings assembled by the students as background:

UPDATE: My students also have suggested that these issues merit consideration of "whether or not legalizing marijuana in the United States will thwart the drug cartels in Mexico [and how this impacts] the massive amount of Mexican asylum cases the US is currently receiving (and denying)."

Here are additional readings on this topic:

And some conflicting views on whether or not marijuana legalization would stop Mexican cartels:

November 19, 2013 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, International Marijuana Laws and Policies | Permalink | Comments (0)

Thursday, November 7, 2013

Is it "misleading to compare marijuana to beer"?

Beer potThe question in the title of this post is drawn from a quote by someone from the Beer Institute appearing in this notable new National Journal item headlined "Alcohol Is Really Pissed Off at Marijuana Right Now; The marijuana industry is convincing Americans its substance is safer than alcohol, and booze lobbyists don't like it."   Here are excerpts from the new National Journal piece:

Marijuana has been giving alcohol a bad name. So contend booze lobbyists, who are getting sick of an ad campaign that makes the claim that pot is safer than their beloved beverages.

"We're not against legalization of marijuana, we just don't want to be vilified in the process," said one alcohol industry representative who didn't want to be quoted harshing his colleagues mellow. "We don't want alcohol to be thrown under the bus, and we're going to fight to defend our industry when we are demonized."

The marijuana industry has had a good couple of years: a recent poll found that 58 percent of the country thinks the product should be legal, recreational use has been legalized in two states already, and this past election saw the city of Portland, Maine, legalize 2.5 ounces of pot. Ahead of the vote in Portland — which received 70 percent support — the Marijuana Policy Project put up signs around the city with messages like "I prefer marijuana over alcohol because it doesn't make me rowdy or reckless," and "I prefer marijuana over alcohol because it's less harmful to my body."

Alcohol lobbyists believe it's a "red herring" to compare the two. "We believe it's misleading to compare marijuana to beer," said Chris Thorne of the Beer Institute. "Beer is distinctly different both as a product and an industry."

Thorne notes that the alcohol industry is regulated, studied extensively, and perhaps more importantly already an accepted part of the culture. "Factually speaking beer has been a welcome part of American life for a long time," he said. "The vast majority drink responsibly, so having caricatures won't really influence people."

But MPP takes issue with the idea they are painting a false picture. In a recent Op-Ed for CNN, Dan Riffle, the group's director of federal policies, notes that according to the Centers for Disease Control excessive alcohol use is the third leading lifestyle-related cause of death. Booze also "plays a role in a third of all emergency room visits," he says....

"That's like saying we shouldn't talk about relative harms of sushi to fried chicken," said Mason Tvert, who in addition to working at MPP wrote a book called Marijuana is Safer: So Why are We Driving People to Drink? "It's important that people know the relative harms of all substances, so there's no reason not to talk about the two most popular substances in the world."

Cross-posted at Marijuana Law, Policy and Reform

November 7, 2013 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, November 5, 2013

"18 Milestones That Led To Our Marijuana 'Tipping Point'"

The title of this post is the headline of this notable and amusing new commentary now up at The Huffington Post.  Here is how it gets started, along with the first two listed "milestones":

At a recent speech in Denver, Drug Policy Alliance executive director Ethan Nadelmann declared that we've hit "the tipping point" on marijuana policy.

With Colorado and Washington getting ready for the first ever legal, regulated, recreational marijuana retail market for adults in the U.S.; with a majority of Americans recently saying for the first time in U.S. history that marijuana usage should be made legal; with a coalition of conservative Mormon mothers fighting for safe access to medicinal cannabis for their children -- it's hard to to disagree with him.

Although much of this is recent history, it has been a long road to what very well may be the beginning of the end of marijuana prohibition in America. Here's a look back at the major milestones that helped bring the United States to its "tipping point."

1. A long, long time ago, a plant grew on planet Earth....

2. America's founding fathers were quick to celebrate its benefits...

November 5, 2013 in Current Affairs, History of Marijuana Laws in the United States | Permalink | Comments (0)

Sunday, November 3, 2013

The Nation talks up "Dope and Change" and explains "Why It’s Always Been Time to Legalize Marijuana"

Cover1118If magazine covers serve as a marker of some kind of tipping point, then November 2013 should be marked as the month when these covers went to pot.   As noted in this prior post, the November 2013 issue of Reason magazine has lots of terrific coverage of modern marijuana realities and a lengthy cover story titled "Pot Goes Legit."  Now I see that the November 18, 2013 issue of The Nation is covering marijuana mania with a cover picture of President Obama's high-school "Choom Gang" under the headline "Dope and Change" and this editorial headlined "Why It’s Always Been Time to Legalize Marijuana."  Here is how the editorial gets started:

“Marijuana is indeed a gateway drug,” quips Sanho Tree of the Institute for Policy Studies. “It’s a gateway drug to the Oval Office!” Indeed. From Bill Clinton’s “I didn’t inhale it” through George W. Bush’s “I was young and foolish” to Barack Obama’s teen years in the Choom Gang (“I inhaled frequently—that was the point”), the last three presidents have more or less owned up to breaking America’s drug laws.

All of them were elected. Then re-elected.

This raises obvious questions: If Clinton, Bush and Obama, ex–pot smokers all, were deemed responsible enough to lead the world’s most powerful nation, largest economy and strongest military (with thousands of nukes), why are we still arresting young men and women — especially young African-Americans and Latinos — for doing what these men did? Why do countless people languish behind bars for nonviolent drug crimes? And why is pot still classified as a dangerous drug?

This is especially astonishing when you consider that almost half of all Americans — myself included — admit to having at least tried pot. As a parent who has had the substance use-and-abuse talks with my 22-year-old daughter, I’ve had a hard time explaining why she can freely purchase cigarettes, which can certainly kill her, but not marijuana, which will surely not.

When the Eighteenth Amendment banned alcohol in 1920, it took thirteen years to admit failure and enact the Twenty-first, which ended Prohibition. By contrast, it has now been almost eighty years since the Federal Bureau of Narcotics launched the “reefer madness” era. The ensuing decades have been a debacle, from Nixon’s “war on drugs” to the creation, by Joe Biden, of a national “drug czar.”

So much failure. So many lives ruined. So much time wasted. Enough. It’s time to end pot prohibition.  It’s time to legalize marijuana.

In addition to this editorial, The Nation has in both its print edition and on-line an extraordinary amount of insightful commentary about modern marijuana realities past, present and future. Here are links to all the coverage, cut and pasted straight from the end of the editorial:

Also In This Issue

Mike Riggs: “Obama’s War on Pot

Carl L. Hart: “Pot Reform’s Race Problem

Harry Levine: “The Scandal of Racist Marijuana Possession Arrests—and Why We Must Stop Them

Martin A. Lee: “Let a Thousand Flowers Bloom: The Populist Politics of Cannabis Reform

Martin A. Lee: “The Marijuana Miracle: Why a Single Compound in Cannabis May Revolutionize Modern Medicine

Kristen Gwynne: “Can Medical Marijuana Survive in Washington State?

Atossa Araxia Abrahamian: “Baking Bad: A Potted History of High Times

Various Contributors: “The Drug War Touched My Life: Why I’m Fighting Back

And only online…

J. Hoberman: “The Cineaste’s Guide to Watching Movies While Stoned

Harmon Leon: “Pot Block! Trapped in the Marijuana Rescheduling Maze

Seth Zuckerman: “Is Pot-Growing Bad for the Environment?

November 3, 2013 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Saturday, September 21, 2013

"Law, Moral Attitudes, and Behavioral Change"

The title of this post is the title of this notable new paper available via SSRN and authored by Kenworthey Bilz and Janice Nadler.  Though not focused on marijuana law or moral views of marijuana use, I suspect those who favor and those who disfavor legal reforms will find lots of interest in this article.  Here is the abstract:

The fear of sanction or desire for rewards is the most straightforward way that law influences behavior, but it might not always be the most effective. More indirectly, law can change moral attitudes underlying behaviors, and this mechanism is potentially extremely efficient by being self-enforcing.  Law can influence moral attitudes by recharacterizing behavior previously thought of as harmless, by signaling moral approval for behaviors previously thought of as outside the domain of morality, or by developing a general reputation for doing what justice requires and by providing high quality treatment to citizens.  Laws sometimes affect moral attitudes in the intended ways, but sometimes they do not.

We argue that the success of legal regulation in changing moral attitudes will depend on a number of variables.  We focus specifically on: 1) whether the regulation aims to change attitudes which are important to individuals’ cultural identities; 2) whether there is underlying dissensus about the behavior or attitude; 3) whether the law is attempting to change the underlying meaning of behaviors, rather than trying to change the behaviors itself. We examine the influence of law through various mechanisms, including physical architecture, social meaning, attitude change, and consensus.  Throughout the discussion of these mechanisms, we focus on factors that lead to success, failure, or even perverse effects.

September 21, 2013 in Current Affairs, History of Marijuana Laws in the United States | Permalink | Comments (0)

Thursday, September 5, 2013

Are there undisputed benefits from prohibition regimes and/or undisputed harms from legalization/regulation regimes?

The question in the title of this post is a variation of the topic that consumed discussions today in my "Marijuana Law, Policy & Reform" seminar.  Though I am not sure I did a great job steering the discussion, I am sure that students had a number of interesting and thoughtful reactions to the first part of this question.  

One of my goals in these questions is to explore whether, if we take as an empirical given that prohibition regimes do tend to reduce use of a prohibited product, folks would accept or resist the contention that reduced use is an undisputed benefit of prohibition regimes.  (We have been considering the history of alcohol Prohibition in the US at the start of the course, and some research suggests that the enactment of the 18th Amendment and related laws drove down alcohol consumption to 30% of pre-Prohibition usage, although over the period of Prohibition alcohol use rose to reach about 60 to 70% of pre-Prohibition usage levels.)  Of course, to say reduced use of a product is an undisputed benefit indicates a belief that any and all use is an undisputed harm.   I suspect many folks would now resist the claim that any and all use of alcohol is an undisputed harm, and I explored with students whether they thought more of society was coming to resist the claim that any and all use of marijuana is an undisputed harm.

At the end of the class, we only briefly got to the question of what undisputed harms might be said to flow, at least in part, from legalization/regulation regimes for a drug like alcohol.  I started this part of the discussion with my concerns about significant harms that result from drunk driving, and other students raised issues related to crimes and physical violence and related to poor allocation of societal resources.  How much of these harms could and should be attributed to our current legalization/regulation regime for alcohol is, of course, a contestable question, but in this setting the issue seems to be not whether these matters count as harms, but rather whether a legalization/regulation regime increased or increases these harms.

September 5, 2013 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)